Rights of Children

In the Constitution

HAQ: Centre for Child Rights

New Delhi
 What are Rights?

Your Right is what someone else must do

for you
Your right is also about what other must not
do to you (such as discriminate,use
violence)

Rights are entitlements

Needs, Rights, Privileges
lNeeds are all those tangible and intangible
things we wish for to live.
lSome of these are basic needs
lSome of these basic needs get translated
into a legal frame and become a right
lA privilege is a need that may be legally valid
but beyond a basic need or right.
Concept of Rights
l Rights dominate our understandings of what
actions are proper and which institutions are just
l Rights structure the forms of our governments,
the contents of our laws, and the shape of
morality as we perceive it.
l Right holders have corresponding duty bearer.
The citizen is the right holder and the state the
duty bearer
l Governments have the obligation to ensure the
realisation of rights of citizens
 Children and their rights
l Children are right holders
l They are entitled to support as right holders
l The State and its government is obligated to realise the
rights of children
l All adults can play a role in achieving children’s rights
but state is the primary duty bearer
l All rights are common for adults and children
l Some rights are defined specifically for children (hence
UNCRC and also articles in the constitution and special
laws)
l While all children have all rights, some children need
special attention because of their situation
Constitution of India
The Constitution lays down the rules that
the Government must follow to protect
people from unjust action by the
government. These are rights that the
government cannot take away
lChildren have all rights as equal
citizens of India, just as any other adult
male or female.
lThe Constitution of India also has
special articles for children
Preamble of the Constitution

lJUSTICE, social, economic and political;

lLIBERTY of thought, expression, belief,
faith and worship;
lEQUALITY of status and of opportunity;
lto promote among them all FRATERNITY
assuring the dignity of the individual and the
unity and integrity of the Nation
Fundamental Rights (Part III) are the basic human rights of all
citizen and are enforceable by the courts, subject to specific
restrictions.

Directive Principles of State Policy (Part IV) are guidelines for the
framing of laws by the government and not enforceable by the
courts, but the principles on which they are based are fundamental
guidelines for governance that the State is expected to apply in
framing and passing laws.

The Fundamental Duties set out in Part IV–A are the moral
obligations of all citizens to help promote a spirit of patriotism and to
uphold the unity of India and they are not legally enforceable.
 Fundamental Rights
Fundamental means Basic. All rights that are basic to
every human being has been listed by the
Constitution Under Fundamental Rights:

Right to equality
Right to Equality Before Law (Article 14)
lRight against discrimination (Article 15) The State must
make special provisions for women and children (Article
15 (3)).
lRight to be protected from Untouchability (Article 17)
 Right to Freedom
lRight to Freedom speech and Expression (Article 19) (Includes the
right to know; Creative expression
¡To assemble peaceably and without arms
¡To form associations and unions
¡To move freely throughout the territory of India
¡To practice any profession, occupation or carry on trade and
business
lRight to life and personal liberty (Article 21) (Right to a life with
dignity)
lRight to free and compulsory elementary education for all
children in the 6-14 year age group (Article 21 A) Inserted
after 86 th Amendment in 2006
lProtection against arrest and detention (Article 22)
Right Against Exploitation

lRight to being protected from being

trafficked and forced into bonded labour
(Article 23)
lProhibition of Traffic in human beings and
forced labour (Article23
lProhibition of Employment of children in
factories etc.
Right to Freedom of Religion

l Freedom of Conscience and practice of Religion

(Article 25)
l Freedom to manage religious affairs (this
includes the right to establish and maintain
institutions and administer property in
accordance with law (Article 26)
l Freedom to promote one’s religion (Article 27)
l Freedom of religious instruction (Article 28).
However, no religious instruction shall be
provided in any institution maintained by State
funds)
Cultural and Educational Rights

lProtection of Rights of Minorities (Article

29)
¡Right to conserve one’s language, script and
culture Facilities for instruction in mother-tongue at
primary stage. Article 350
¡Right to admission to any educational institution
without discrimination
lRight to establish and administer
educational institutions (Article 30)
Right to Constitutional Remedies

lThe Right to move the Supreme Court for

enforcement of rights (Article 32)
Normally one cannot approach the Supreme
Court directly without first going through
the lower courts. But because of their
importance, one can do so in the case of
violation of ones fundamental rights
To Enforce Fundamental Rights

lFile a petition in Supreme Court

lPetition in the High Court
lWriting a letter to the High Court or
Supreme Court
lAsking someone to file a petition on our
behalf
lWrite a letter on our behalf if one is unable
to (as may be the case with children)
Directive principles of State Policies
Article 39A. The State shall secure that the operation of the legal system promotes
justice, on a basis of equal opportunity, and shall, in particular, provide
free legal aid, by suitable legislation or schemes or in any other way, to
ensure that opportunities for securing justice are not denied to any citizen by
reason of economic or other disabilities.
Article 39(e) Right to be protected form being abused and forced by economic
necessity to enter occupations unsuited to their age or strength.

Article 39(f) Right to equal opportunities and facilities to develop in a healthy

manner and in conditions of freedom and dignity and guaranteed protection
of childhood and youth against exploitation and against moral and material
abandonment

Article 45. The State shall endeavour to provide, within a period of ten years from
the commencement of this Constitution, for free and compulsory
education for all children until they complete the age of fourteen years.
This has now changed

¡ · Right to early childhood care and education to all children until

they complete the age of six years (Article 45)
Article 46. Right of weaker sections of the people to be protected from social
injustice and all forms of exploitation
Article 47. Right to nutrition and standard of living and improved public health
Fundamental Duties Article 51 A

(k) who is a parent or guardian to

provide opportunities for education to
his child or, as the case may be, ward
between the age of six and fourteen
years.
Applicability of International Law

lInternational law does not become

automatically applicable in India. It
needs to be translated into national
law. But they can be cited as
additional documents. Supreme Court
has used it to make judgments, which
have now become case law.
In Githa Hariharan & Anor v. Reserve Bank of India & Another,
(February 17, 1999) Supreme Court of India court stated, "India is a
signatory to CEDAW...[t]he interpretation...placed on s6(a) gives effect to the
principles contained in these instruments. The domestic courts are under an
obligation to give due regard to international conventions and norms for
construing domestic laws when there is no inconsistency between them.“
 Vishaka Judgement

l Before we refer to the international conventions and norms having relevance in this
field an the manner in which they assume significance in application judicial
interpretation, we may advert to some other provisions in the Constitution which
permit such use....Article 253- Legislation for giving effect to international
agreements. Notwithstanding anything in the foregoing provisions of this Chapter,
Parliament has power to make any law for the whole or any part of the territory of
India for implementing any treaty. Agreement or convention with any other country or
countries or any decision made at any international conference, association or other
body
Constitutional Provisions must be backed by law, policy and
programmes and schemes

l Article 21 –Right to Education Bill 2008

l Right Against Exploitation (Articles 23, 24 and 39e)-
ITPA; Bonded Labour System Abolition Act (1976); Child
Labour (Prohibition and Regulation Act), 1986; Children
(Pledging of Labour) Act, 1933
l Right to equality and equal opportunity; and Right
against discrimination (Article 15,39f;)-The Persons with
Disabilities Act 1995; Laws for SC and ST, scavenging
etc. PC&PNDT Act
l Protection against arrest and detention (Article 22)- JJ
Act